Citation Nr: 1509459
Decision Date: 03/04/15 Archive Date: 03/17/15
DOCKET NO. 05-36 040 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for sleep apnea.
4. Entitlement to service connection for chronic fatigue to include as a qualifying chronic disability resulting from service in the Southwest Asia theater of operations during the Persian Gulf War.
5. Entitlement to service connection for irritable bowel syndrome (IBS), to include as a qualifying chronic disability resulting from service in the Southwest Asia theater of operations during the Persian Gulf War.
6. Entitlement to service connection for fibromyalgia, to include as a qualifying chronic disability resulting from service in the Southwest Asia theater of operations during the Persian Gulf War.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. Neilson, Counsel
INTRODUCTION
The Veteran served in the Army National Guard (ARNG) with periods of active duty from March 27, 1997, to August 9, 1997, and from February 3, 2003, to May 25, 2004.
These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
The Board notes that the instant matters were previously before it in November 2013 at which time they were remanded to afford the Veteran the opportunity to present testimony on these issues before a member of the Board. On January 28, 2014, the Veteran testified at a hearing before the undersigned, sitting at the RO. A transcript of that hearing is associated with the Veteran's Virtual VA file.
Also, remanded by the Board in November 2013 was the issue of entitlement to special monthly compensation based on loss of use of a creative organ. Notably, the Veteran had presented testimony on that issue during a November 2011 Board hearing, which hearing was conducted by another Veterans Law Judge. In an April 2014 rating decision, the RO granted entitlement to special monthly compensation based on loss of use of a creative organ, effective from March 15, 2006. The Veteran was notified of the decision and of his appellate rights in a letter from the RO dated the following month. To date, it does not appear as though the Veteran has disagreed with any aspect of that decision. That matter has accordingly been resolved. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Further, as all matter addressed during the November 2011 hearing have been resolved, the Board finds no reason to convene a panel of three Veterans Law Judges to decide the matters currently before it.
Lastly, the Board notes that the Veteran was previously represented by attorney David L. Huffman; however, attorney Huffman's accreditation was revoked, effective August 8, 2014. In September 2014, the Board notified the Veteran that Mr. Huffman's authority to represent VA claimants had been cancelled. The Board also provided the Veteran with an opportunity to appoint another representative, notifying him that if he failed to respond within 30 days, it would be assumed that he wished to represent himself. The Veteran has not responded to the Board's September 2014 letter. Therefore, the Board assumes he wishes to proceed with his appeal unrepresented.
FINDINGS OF FACT
1. During his January 2014 hearing, the Veteran expressed his desire to withdraw from appellate review his appeal as to the issue of entitlement to service connection for fibromyalgia; the Veteran's desire to withdraw his appeal as to that claim is recorded in the hearing transcript.
2. Resolving reasonable doubt in the Veteran's favor, the Veteran's diagnosed sleep apnea first manifested in service.
3. The Veteran has not been diagnosed as having chronic fatigue syndrome; his symptom of fatigue has been associated with his already service-connected disabilities.
CONCLUSIONS OF LAW
1. The Veteran's appeal as to the issue of entitlement to service connection for fibromyalgia is withdrawn. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2014).
2. The Veteran has sleep apnea that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).
3. The Veteran does not have chronic fatigue syndrome and no such disability may be presumed to have been due to an undiagnosed illness incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1117, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Withdrawal
An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). An appeal may be withdrawn by an appellant or by his representative. 38 C.F.R. § 20.204(a) (2014). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c).
The Veteran was seeking service connection for fibromyalgia, to include as a qualifying chronic disability resulting from service in the Southwest Asia theater of operations during the Persian Gulf War. He perfected his appeal of the issue in February 2013. A review of the January 2014 hearing transcript shows that during his hearing, the Veteran expressed his desire to withdraw his appeal as to the issue of entitlement to service connection for fibromyalgia. As the Veteran has expressed his desire to withdraw his appeal before the Board, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to service connection for fibromyalgia. See 38 U.S.C.A. § 7105(d)(5) (West 2014). Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed.
II. Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).
At the outset, the Board notes that in order to receive VA benefits, a payee must be a "veteran," which is defined, in part, as "a person who served in the active military, naval, or air service." 38 U.S.C.A. § 101(2) (West 2014); see 38 C.F.R. § 3.1(d) (2014). "[A]ctive military, naval, or air service" is defined to include
active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.
38 U.S.C.A. § 101(24); see 38 C.F.R. § 3.6(a) (2014). Additionally, "[a]ctive duty for training" for "members of the National Guard . . . of any State" is defined as "full-time duty under section 316, 502, 503, 504, or 505 of title 32 . . ., or the prior corresponding provisions of law." 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c)(3). Similarly, "[i]nactive duty training" in reference to "members of the National Guard . . . of any State" is defined as "duty (other than full-time duty) performed by a member of the National Guard in any State under sections 316, 502, 503, 504, or 505 of title 32 . . ., or the prior corresponding provisions of law." 38 U.S.C.A. § 101(23); see 38 C.F.R. § 3.6(d)(4). Thus, to establish basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must either have been ordered into Federal service by the President of the United States, see 10 U.S.C.A. § 12401 (West 20014), or must have performed "full-time duty" under the provisions of 32 U.S.C.A §§ 316, 502, 503, 504, or 505. See 38 U.S.C.A §§ 101(21), (22)(C); Allen v. Nicholson, 21 Vet. App. 54, 60 (2007).
At the outset, the Board notes the Veteran is seeking service connection for sleep apnea, which he asserts was incurred in or related to his overseas service during the Persian Gulf War. The Veteran's DD Form 214 for the period of February 3, 2003, to May 25, 2004, shows that the Veteran was ordered into active duty in support of Operation Enduring Freedom, under the provisions of 10 U.S.C.A. § 12302, and that he served in Kuwait and Iraq from April 8, 2003, to September 14, 2003. Thus, because he was ordered into Federal service by the President, he was serving on active duty during this period of time and is therefore potentially eligible for VA benefits based on a disability resulting from disease or injury incurred in or aggravated by active military service from February 3, 2003, to May 25, 2004.
A. Sleep Apnea
A review of the Veteran's VA treatment records contained in Virtual VA shows that he was seen for a sleep disorders consultation in December 2009 and that he was diagnosed as having obstructive sleep apnea in May 2009. Although the Veteran's service treatment records fail to reveal any evidence of a sleep disorder or of sleep disturbances, the Veteran's VA treatment records show that he began to complain of sleep troubles in September 2004. A mental health treatment noted dated on September 14, 2004, reveals that the Veteran then reported being unable to stay asleep "[s]ince September last year." Further, during his January 2014 hearing, the Veteran endorsed waking frequently while stationed overseas during service, but stated that he then assumed it was the noise from frequent explosions that was causing him to wake up.
In November 2012, the Veteran was afforded a VA examination in connection with his claim and a nexus opinion was obtained the following month. The examiner thoroughly reviewed the record, as evidenced by her detailed account of the relevant evidence related to the Veteran's complaints of sleep disturbances, to include the lack of evidence documenting sleep complaints in service. Upon consideration of this evidence, the examiner opined that it was at least as likely as not that the Veteran's diagnosed sleep apnea was caused by or the result of military service. As rationale for her opinion, the examiner noted that the Veteran had presented with complaints of disturbed sleep a few months after being discharged from active duty, at which time was treated for depression. The examiner noted that the Veteran was later diagnosed as having sleep apnea and indicated that the Veteran's symptoms, first documented in 2004, were consistent with both depression and sleep apnea, as both conditions can caused fragmented sleep and fatigue. The examiner then opined that sleep apnea was at least as likely as not responsible for the symptoms of fragmented sleep noted by the Veteran in 2004.
In the instant case, although the Veteran did not complain of difficulty sleeping until after his period of active duty, he indicated that his symptoms had existed for some time at that point. The Board finds no reason to question the Veteran's credibility in this regard as he also provided a plausible explanation for why he did not suspect his sleep disturbances were indicative of a disability while stationed overseas. Thus, in consideration of the Veteran's lay statements and the VA examiner's opinion, which is not contradicted by any other medical evidence of record, the Board finds that when reasonable doubt is resolved in favor of the Veteran, an award of service-connection for sleep apnea is warranted as the evidence reasonably establishes that the disease process began in service and has persisted since.
B. Chronic Fatigue
The Veteran claimed service connection for chronic fatigue syndrome, which he attributes to his military service during the Persian Gulf War. In the instant case, because the record reflects that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established on an alternative presumptive basis under 38 C.F.R. § 3.317, which provides that service connection may be warranted for veterans with service in the Southwest Asia theater of operations during the Persian Gulf War who exhibit objective indications of "a qualifying chronic disability" that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1) (2014).
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines meets the criteria for a medically unexplained chronic multisymptom illness. Relevant to the instant case, a medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i).
As for the Veteran's complained-of fatigue, during a November 2012 VA examination the Veteran reported that he first noticed problems with fatigue upon returning home from deployment. He stated his belief that his fatigue is due to his sleep apnea and reported that it developed suddenly. Upon review of the record and in consideration of the Veteran's reported symptoms, the examiner found that, although the Veteran had symptoms of chronic fatigue, such as excessive daytime sleepiness, he did not meet the criteria for a diagnosis of chronic fatigue syndrome, nor had he ever been diagnosed as having chronic fatigue syndrome. The examiner then opined that the Veteran's fatigue was a manifestation of his service-connected psychiatric disability, his sleep apnea, and his service-connected back disability. The examiner stated explicitly that the Veterans chronic fatigue did not represent a separate disability, but rather, was a symptom of each of those three conditions.
In light of the VA examiner's opinion, the Board finds no basis upon which to award service connection for the Veteran's chronic fatigue, as he has not been diagnosed as having chronic fatigue syndrome due to his Persian Gulf War service, and his fatigue is not a separate disability but is a symptom of disabilities for which the Veteran is already, or will be by virtue of this decision, receiving compensation. Accordingly, the Board finds that the claim of service connection for chronic fatigue must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2014).
III. Notice and Assistance
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.
The VCAA notice requirements apply to all five elements of a service connection claim. These are (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Veteran has not disputed the contents of the VCAA notice. The Board also finds that an April 2010 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Accordingly, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were met.
Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claims decided herein have been obtained. Additionally, the Veteran was provided with a VA examination in November 2012. The Board finds that the examination and opinion reports contain sufficient evidence by which to decide the Veteran's claims and that the opinions of records are supported by an adequate rationale. The Board has therefore properly assisted the Veteran in developing his claims.
ORDER
The appeal of the issue of entitlement to service connection for fibromyalgia is dismissed.
Entitlement to service connection for sleep apnea is granted.
Entitlement to service connection for chronic fatigue to include as a qualifying chronic disability resulting from service in the Southwest Asia theater of operations during the Persian Gulf War, is denied.
REMAND
Regarding the Veteran's claim of service connection for hearing loss, the Board notes that the results of audiometric testing conducted as part on a November 2012 VA examination fail to demonstrate that the Veteran has hearing loss for VA purposes. See 38 C.F.R. § 3.385 (2014). During his January 2014 hearing, the Veteran testified that his hearing had worsened since that time. As noted by the United States Court of Appeals for Veterans Claims (Court) in Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007), whether there exists a current hearing loss disability depends on the level of hearing impairment, which makes the service connection determination akin to that of a disability rating. Given the Veteran's assertion that his hearing acuity has decreased, the claim of service connection for hearing loss must be remanded for the Veteran to be afforded another audiometric test to determine whether he has hearing loss to a degree considered disabling for VA purposes. See Palczewski, supra; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). If a hearing impairment is shown, then an opinion should be obtained on whether such loss is related to military service.
The Board also notes that during his January 2014 hearing, the Veteran indicated his belief that his hearing had been re-tested at the VA Medical Center in Clarksburg, West Virginia, since the November 2012 VA examination was conducted. The VA treatment record currently before the Board, to include those contained in the Veteran's Virtual VA and VBMS files are dated through July 2012. On remand, the AOJ should ensure that all relevant VA treatment records dated since that time should be associated with the record.
Regarding the Veteran's claim of service connection for tinnitus, the November 2012 VA examination report contains the examiner's opinion that the Veteran's tinnitus was less likely than not a symptom associated with his hearing loss. In a December 2012 addendum, the examiner opined that it was less likely than not that the Veteran's tinnitus was incurred in or caused by service, stating that noise induced hearing loss most often accompanies noise induced tinnitus. The examiner also indicated that the Veteran reported hearing tinnitus "'a little bit'" and more so when it was quiet. The examiner stated that this was "normally occurring tinnitus," as it was not severe or frequent enough to suggest noise induced tinnitus. During his January 2014 hearing, however, the Veteran reported that his tinnitus was constant, but that it did not bother him as much when there was background noise. It appears from the examiner's opinion that there is potentially an association between the Veteran's hearing loss and tinnitus, in that if service connection for hearing loss is granted due to acoustic trauma in service it may be determined that his tinnitus is of the same origin. As such, the Board will defer action on the issue of entitlement to service connection until after the issue of entitlement to service for hearing loss has been further developed and readjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).
Turning to the Veteran's claim of service connection for IBS, the Board notes that IBS is considered to be a medically unexplained chronic multisymptom illness for the purposes of presumptive service connection under 38 C.F.R. § 3.317. The Veteran was examined in November 2012, at which time the examiner indicated that rendering a diagnosis was not possible at that time, apparently because the Veteran had not returned a stool sample, as requested to do so. Although the Veteran has not been diagnosed as having IBS, in 2014, he testified as to the recurrence of symptoms potentially indicative of IBS. The Veteran also indicated his willingness to submit a stool sample for evaluation purposes.
The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran failed to cooperate with VA's attempt to assist him in the development of his claim when he failed to return a requested stool sample for evaluation. However, given that the Veteran has indicated his willingness to do so at this time and because he continues to experience symptoms suggestive of IBS, the Board will remand the issue of entitlement to service connection for IBS to afford the Veteran another opportunity to participate in the development of his claim.
Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action:
1. The AOJ should ensure that all relevant VA treatment records dated since July 2012 should also be associated with the claims folder.
2. Thereafter, the Veteran should be afforded a VA audiology examination to evaluate his claim of service connection for right ear hearing loss. The audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted.
If the result of audiometric testing shows a current hearing impairment by VA standards, the audiologist should provide an opinion as to whether the Veteran's hearing loss is at least as likely as not related to active military service.
The audiologist is also requested to provide an opinion as to whether the Veteran has tinnitus that is at least as likely as not related to active military service.
Regardless of whether the audiologist's opinion as to any question is favorable or negative, the audiologist must provide support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder or to known medical principles relied upon in forming his opinion.
If the audiologist determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the audiologist should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the audiologist should be undertaken so that a definite opinion can be obtained.)
3. The AOJ should schedule the Veteran for a VA examination in connection with his claim of service connection for IBS. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All necessary tests and studies should be conducted. The Veteran should be advised to bring a stool sample with him to his scheduled VA examination.
The examiner should elicit from the Veteran a complete history regarding the onset of continuity of symptoms. The examiner should be asked to provide an opinion as to whether the Veteran's reported symptoms are attributable to another known clinical diagnosis. The examiner must provide an opinion as to whether the Veteran's symptoms can be collectively linked to a medically unexplained chronic multisymptom illness and in particular, to IBS.
If the examiner finds that any past or present complained-of gastrointestinal symptoms, are not due to a specific diagnosed disease entity, the examiner should opine whether such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service.
Regardless of whether the examiner's opinion is favorable or negative as to any requested opinion, the examiner must provide support for his opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. The examiner must consider and discuss the Veteran's lay statements regarding the onset and continuity of all symptoms capable of lay observation. Medical reasons to accept or reject the Veteran's statements regarding the onset and continuity of symptoms should be set forth.
4. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues of entitlement to service connection for hearing loss, tinnitus, and IBS. If any benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs